United States District Court, M.D. Florida, Jacksonville Division
ALEXANDER C. BROOKS, JR., Plaintiff,
MELISSA NELSON, et al., Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
TIMOTHY J. CORRIGAN, UNITED STATES DISTRICT JUDGE.
Alexander C. Brooks, Jr., initiated this case by filing a pro
se Civil Rights Complaint (Doc. 1) (Complaint) pursuant to 42
U.S.C. § 1983, a motion to proceed in forma
pauperis (Doc. 2), and a motion to appoint counsel (Doc.
3). Plaintiff names three Defendants: Melissa Nelson, the
State Attorney for the Fourth Judicial Circuit of Florida;
Mike Williams, the Sheriff for the Jacksonville Sheriff's
Office; and Ronnie Fussell, the Clerk of the Circuit and
County Courts in and for Duval County, Florida.
Complaint is not a model of clarity. He alleges that he has
contacted each Defendant and requested that they arrest
and/or file criminal charges for perjury against an
individual named Kristine Willis. Doc. 1 at 12-13. However,
according to Plaintiff, when he wrote to Defendant Nelson,
she advised Plaintiff that “her office does not
initiate [c]riminal charges, ” and that Plaintiff
“would need to contact the Jacksonville Sheriff's
Office to request that someone be charged with a
crime.” Id. at 13. Plaintiff alleges that when
he contacted Defendant Williams, Defendant Williams responded
that “he did not see any elements of probable cause in
regards to [Plaintiff's] allegations of [p]erjury against
Ms. Willis.” Id. Plaintiff asserts that he
also wrote to Defendant Fussell, but it is not clear if
Defendant Fussell responded to Plaintiff's letter.
Id. at 12-14. Plaintiff states that Defendants'
refusal to investigate or pursue charges against Ms. Willis
violates his Eighth and Fourteenth Amendment rights resulting
in “emotional a[n]guish, emotional suffering and
emotional stress.” Id. at 4-5. As relief,
Plaintiff seeks a preliminary injunction against Defendants;
$60, 000 in compensatory damages; $60, 000 in “general
damages”; and $60, 000 in punitive damages.
Id. at 14.
Prison Litigation Reform Act requires the Court to dismiss a
case at any time if the Court determines that the action is
frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief against a
defendant who is immune from such relief. See 28
U.S.C. § 1915(e)(2)(B). The Court liberally construes
the pro se plaintiff's allegations. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Bingham v.
Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011).
respect to whether a complaint “fails to state a claim
on which relief may be granted, ” §
1915(e)(2)(B)(ii) mirrors the language of Federal Rule of
Civil Procedure 12(b)(6), so courts apply the same standard
in both contexts. Mitchell v. Farcass, 112 F.3d
1483, 1490 (11th Cir. 1997); see also Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). “Labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action” that amount to
“naked assertions” will not do. Id.
(quotations, alteration, and citation omitted). Moreover, a
complaint must “contain either direct or inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory.”
Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d
678, 683 (11th Cir. 2001) (quotations and citations omitted).
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that a person acting under color of state law deprived
him of a right secured under the Constitution or laws of the
United States. See Salvato v. Miley, 790 F.3d 1286,
1295 (11th Cir. 2015); Harvey v. Harvey, 949 F.2d
1127, 1130 (11th Cir. 1992). Moreover, “conclusory
allegations, unwarranted deductions of facts, or legal
conclusions masquerading as facts will not prevent
dismissal.” Rehberger v. Henry Cty., Ga., 577
Fed.Appx. 937, 938 (11th Cir. 2014) (per curiam) (quotations
and citation omitted). In the absence of a federal
constitutional deprivation or violation of a federal right, a
plaintiff cannot sustain a cause of action against a
fails to allege a plausible § 1983 claim against
Defendants. Plaintiff “‘lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another.'” Williams v. Monroe Cty. Dist.
Attorney, 702 Fed.Appx. 812, 814 (11th Cir. 2017)
(quoting Smith v. Shook, 237 F.3d 1322, 1324 (11th
Cir. 2001)). Plaintiff only asserts liability upon Defendants
for their failure to properly investigate Ms. Willis for
alleged perjury and/or ensure that criminal charges were
pursued against her. However, “[t]he decision to file
or not file criminal charges falls within the category of
acts that will not give rise to section 1983
liability.” Oliver v. Collins, 904 F.2d 278,
281 (5th Cir. 1990); see, e.g., Lessor v.
Dean, No. 5:09-cv-463-Oc-29GRJ, 2010 WL 668268, at *2
(M.D. Fla. Feb. 19, 2010) (holding that plaintiff failed to
state a claim upon which relief could be granted because he
only alleged that defendants failed to investigate and ensure
that charges were brought against a female inmate who
allegedly spit on plaintiff, and did not allege that any
named defendant was personally involved in the alleged
insofar as Plaintiff attempts to hold Defendants liable based
on the theory of respondeat superior, the Eleventh
Circuit has rejected this theory of liability in § 1983
cases. See Keith v. DeKalb Cty., Ga., 749 F.3d 1034,
1047 (11th Cir. 2014) (citing Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003)). see also Richardson v.
Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (affirming
the district court's dismissal of the secretary of the
FDOC because the plaintiff failed to allege that the
secretary personally participated in an action that caused
the plaintiff injury or that the plaintiff's
“injuries were the result of an official policy that
[the secretary] established”). As such, this action is
due to be dismissed without prejudice.
1. This case is DISMISSED without prejudice.
2. The Clerk shall enter judgment dismissing
this case without prejudice, terminate any pending motions,
and close the file.